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About Me

I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, August 04, 2008

Interview with Digby

Glenn Greenwald: I'm excited to welcome to the show today a blogger whom I've been reading religiously way before I even began blogging, and who's the author of some of the best insights about political and media criticism that you'll find anywhere on really a daily basis. And that of course is Digby. Welcome, and thanks for joining me.

Digby: Thanks Glenn, I'm thrilled to be invited.

GG: Thrilled to have you. So I want to start off by talking about something that you've been writing about over the past week, and I've been writing about it as well, and that's what's going on in the political campaign with Obama and McCain, and more specifically what's going on with the media behavior. And one of the interesting observations that you made a day or so ago was that right around this time in 2004, even though a little earlier is when the Bush-Cheney campaign launched the whole Swiftboat smear. This is obviously an important time when the media is starting to look for these kinds of filthy, scurrilous story-lines. So what do you think is, there's really been a change in the campaign narrative and in the McCain strategy. What do you think is been going on the last couple weeks and what's its significance?

D: Well, I think that there's a couple of things. The first is what you say, I think that they've probably been planning some kind of a campaign to raise Obama's negatives during this period. 'Cause it's the dog days of the campaign, we're going into the Olympics, and then the conventions - I think everyone expects Obama to have a good convention, you know, a lot of enthusiasm - so they want to get his negatives up as high as they can and this is the time to really build that because everybody's bored with the campaign at this point. And I'm not, obviously, Obama had a great trip to the Mid East and Europe and maybe they can knock him down quickly after that.

So that's part of it, I mean, I think that's just sort of a routine way that the Republicans have figured out to, you know, dominate the narrative during these presidential summers. But the other thing is, is just how, you know, McCain just hired this guy Steve Schmidt, who you've written about in the past, and so have I, and this really is his specialty. He's the guy who really pushed the narrative on Kerry, about being, you know, he was for it before he was against it flip-flopping. And he apparently created a lot of those themes that came out. So this kind of follows with that sort of thing, and a certain kind of, I don't know, nasty sophomoric quality to the kind of criticisms that you're seeing. This whole Britney Spears business, and, you know, the presumptuousness meme, all this stuff, it's very, it's a very certain, it's a very particular kind of pointed criticism that's aimed at trivializing a candidate as much as criticizing them for their positions or trying to position them in the campaign. This trivialization is very important, and I think particularly important with Obama, because they feel that they've got to something to work with there. The guy has a, you know, he's young, and he is, you know, his campaign is based upon, you know, aspirational kind of, you know,..

GG: That transcendence...

D: Yeah, that isn't really, you know, and, you know, they need to, they want to transform that into inexperience and passivity and shallowness.

GG: Yeah, and vainness, vanity,...

D: Vanity, you know, this is all started with, Maureen Dowd actually pioneered this one with Obama, she called him an anorexic starlet that, you know, chewed Nicorettes for, you know, for sustenance, you know, she's kind of been trying to feminize him for some time. She called him "O'Bamby", you know, for...

GG: For a long time, and yeah and she, for a long time, he was sort of a meek little submissive slave to the, you know, whip-wielding, masculine, emasculating....

D: Right.

GG: So I guess that meme has been, you know, growing in her mind in the sort of bacterial precincts in her mind for a long time and has found now expression more lively.

You know, isn't it really just unbelievable that — and I know this isn't a novel observation, it's been clear for a long time, it's still kind of never ceases to amaze I think — and you look at what our country has become, the extraordinary crises that it faces, the very systemic, you know, corruption and other problems that's plaguing it, and yet in order to talk about the presidential campaign, there's, we basically have to talk about things like "O'Bamby" and is he arrogant, and Britney Spears. I mean, you can't have a discussion about the presidential campaign unless you talk about the pettiest of matters because that's the only things that compose it. Isn't that kind of extraordinary, no matter how often you see?

D: It's really extraordinary this time, and I kind of thought that we managed to, you know, avoid it at least to this degree. I didn't think that it would gain this kind of traction this time. And in many ways, because we have two major things happening: there's a, you know, the war, obviously, which is still a major issue for people, but with the economy, you know, being this turbulent - I honestly didn't think people would put up with it. And, you know, the jury's out, we don't know if people will put up with it; it's possible they're going to reject all this stuff and just go, you're out of your minds, we've got real problems, which may actually grow as we go into the fall, that they may demand a little more seriousness.

But, I didn't expect it to be this bad this time, but it's seems to be that the language of modern politics is these little cultural references, it's as if we're, you know, it's all done in some kind of code, where we're making these momentous decisions about huge global issues, and issues in our own lives when we're talking about these economic issues that are confronting us. And we're doing it in this weird kind of popular culture code that's been developed. And not by the Democrats, this is really been a Republican project. And what it does is it dumbs down politics, trivializes it, and it allows them to sort of create these narratives that put the progressive and liberal candidates into these little stereotypes and archetypal boxes that really limit their ability to talk seriously about things. It's very clever, because the archetype plays to their strengths, you know, big tough guys — well, you wrote a whole book about it.

GG: Right. Well, let me ask you about that, you know, not about my book, but about that last point that you made, about the way in which the predominance of these petty personality themes drowns out any discussion of the issues, which obviously is a significant part of the point. I mean, the Republicans know this year, not just this year, every year really, but particularly this year, that if there were any kind of, you know, just objective examination of the issues, that's what would determine the outcome of the election, that they would have even less chance that they have now. I mean, McCain is inextricably tied to a whole litany of policies that the American public hates, and if you're, you know, McCain's handlers and running his campaign, it's perfectly rational that you would want the election decided on every ground other than substantive issues.

But I wonder, one of the points that a lot of people are making during the primary contest, was that one of the reasons why it became so nasty and so personal was because there were very few differences of any meaningful type between the candidates. I mean, when it was Hillary and Obama and Edwards, they were far more alike than different. And so you almost couldn't have a contest based on policy disputes because there weren't very many policy disputes between them. Is that the same in terms of Obama and McCain? In other words, if it weren't for the fact that Republicans were so adept at, you know, flooding the discourse of these themes, and if it weren't for the fact that the media ate them up because it's, you know, they're softballing, and it's easy to report, would we be having the kind of substantive debates that the country ought to be having, given where the candidates have positioned themselves?

D: Well, that's an interesting question. I mean first of all I would go back just to, you know, your original premise about the primaries. I think that it's true that the reason that things got so nasty was because there weren't a lot of differences, but I don't think that's the whole story. I think the story there was that people, because there weren't a lot of differences, people made the choices between the two candidates based on some very emotional and passionate personal identification. And I think that it was mostly in the affirmative, I think a lot of people, the people chose those two candidates originally — I'm talking about the two, Edwards, you know, kind of, he scrambled the deck a little bit, but he got out early and the rest of it really devolved into nastiness after he left the race. And so I think that they chose those candidates originally on a sense of personal identification, aspiration for, you know, women or African-Americans or whatever it was, you know, youth versus experience, you know, whatever. And so, when that happens, people get personally invested on a level that they don't in a normal political campaign where you don't have, you know, you don't look at the candidate with a sense of, he's me. So I think that was part of what fueled that, and so, I think that's distinct from what we're seeing with McCain and Obama.

You know, I, clearly I think both of them are trying to blur the issues, you know, they're, they both made some, you know, tacks to the middle, McCain less than I expected, because I thought that was his great strength, he'd be running from the Republican brand as far as he could, and his 'maverick-ness' would be the, you know, selling point — he was the guy who fought Bush, right? He's the one Republican in the country who can say that he wasn't Bush's toady for the last eight years. I thought that was his great strength, and he's been doing a lot less of that than I expected, although that may be what they roll out in the fall, because he hasn't secured his base yet. But the nastiness, I think, that's just Republican Playbook 101. I mean I think that's just what they go for — they want to diminish and trivialize the Democratic candidate. They've been doing this since Clinton, but really it was Gore, that campaign in 2000 that really crystallized this for them.

GG: Right. Well, you know, one of the enduring questions is why the press behaves in the way that they do, and it's not something you can answer with easily packaged answers or unifying theories because there's, the press is not any more monolithic than any other large collection of, you know, institutions and people with all kinds of competing motives. But what I do think is sort of distinct about the race this time, and I think it's why a lot of Democrats deluded themselves into believing that things would be different this time around, that things would be better this time around, is because the press clearly doesn't have the level of personal animosity that they have for Obama that they had for, say, John Kerry or Al Gore. Obama's a little savvier, he's kind of cooler, there's the drama that appeals to a lot of people in the media about first African-American president potentially. He's a little more personally engaging and charming. They tend to be finger in the air kind of people and so the fact that the Republicans are hated has taken the sheen off of a lot of the Republican appeal for a lot of people in the media. They're clearly more favorably inclined toward Obama as a candidate than they have been for any other Democratic candidate for quite some time. Certainly way more than, you go back in time to Walter Mondale or Michael Dukakis, or anyone like that. And yet, the behavior in which they're currently engaged, you know, the constant repetition of these petty, stupid right-wing personality demonization attacks, is exactly the same. What do you think explains that?

D: Well, I think it's a fundamental misunderstanding of the relationship between the press and the right wing. The right wing doesn't care if the press likes their person or not. They see them as a useful tool, and so if the press likes them, like, you know, they like George Bush — terrific, great they can work with that, you know. If they're willing to carry every nasty little, you know, faux mot that they come up with research about Al Gore, they're happy with that. But they don't need it. They use the press to disseminate fear. And it doesn't matter if they're doing it, you know, in a positive way, and saying look at Al Gore, what an idiot he is, or if they're doing it in a negative way, as they're doing now with Obama in which they're refuting the smear, and at the same time they're putting the smear up in these big quotes on the screen that sit there for 10 minutes.

I just wrote about this a few minutes ago. I watched Andrea Mitchell actually get into it with Rick Davis, McCain's campaign manager, over this latest Britney Spears thing, right, and the press really seems to be angry about this, upset that McCain has gone so negative, but she's talking over Rick Davis who's going on a mile a minute and they're blah-blah-blah, she's saying, well, it's not right, and, you know, McCain's being negative and he promised he wouldn't and blah, blah, blah. But the whole time, the smear quote is up on the TV screen, and that's all you see, that's all you do, and that's all they want. They don't care that the press doesn't like them.

In fact, it works to their favor in this election, because they want to promote the idea that the liberal media is supporting Obama because the truth is that the media has been in the tank for McCain for years, and they want to get rid of that idea. Republicans need to run against the media; it doesn't do them well to be seen as friendly.

So, you know, the basic problem here isn't that the press is too friendly to Republicans or that they tend to, you know, beat into Democrats. The problem is is that they are not serious and they don't take their jobs seriously, and what they do is they say, are willing to spend their time, as you say, on this trivial stuff, and are willing to be used by the right wing to disseminate this stuff on whatever basis the right wing wants to do it, and that's how the campaigns end up becoming these shallow exercises in character study, which is become a stand-in for, you know, a discussion of the issues or, you know, even a discussion of what the public interest or what the voters' interest or anything else might be. And you end up with, you know, well, he's the guy you want to have a beer with or he's the tough guy who'll defeat the terrorists or whatever, you know, the rest of this is.

GG: Yeah, or he's the arrogant one, or he's the one, you know, whose values are an anathema to the....

D: He's the foreigner, he's the Muslim, he's the weirdo, we don't know who this guy is. He's big city, black guy, he's a, you know, guy from Hawaii. And Obama, being this sort of, I mean he's really a very modern fellow, coming from - and it has to do with his age, I think, most people under the age of 50 are much more, you know, there's a much more varied kind of family, racial make-up, you know, a lot more mobility...

GG: Yeah, backgrounds are more diverse...

D: People lived in different countries, I mean, you know, it's not that unusual, but it is unusual for a President. He's the youngest guy who's ever run, you know, I mean, he's the, born the most recently of anybody that's running for President. So this kind of stuff is coming up, the first in that line are always a big deal, so the right is exploiting that and exploiting fears, and racism and, you know, I mean, it's clear that that's going to be another subtext. They can't really come out with it full board but that's the probably the way McCain's going to solidify his base...

GG: So I guess the question is, I mean, clearly, you know — and you're absolutely right, the cultural appeals are how the Republicans will easily solidify their base regardless of whether McCain embraces every last one of their orthodoxies. But I guess one, you know, of the things Obama campaign has obviously concluded, at least as of now, is that responding in kind, you know, engaging in these same kind of personality assaults, either through surrogates or 527's or whoever, on McCain, is something that's not in their interests, or they're just not doing it for whatever reason. Is that something that you think is smart?

I mean, I think their expectation is, and I think Obama's expectation in the beginning is that the political climate in the country is different than it was in the past. It's different because it's dominated by a different generational sentiment for the reasons that you just described. It's different because the voting, the voter make-up is different and most importantly of all it's different because people are so — this sense of dissatisfaction is so acute, that the kinds of petty appeals that have worked in the past aren't going to work now they're banking on the fact that, you know, with big stream economics security, insecurity, and the low esteem in which all political and media institutions are held, that, you know, chattering about Britney Spears and lapel pins isn't going to have any resonance; it's going actually do the opposite, it's going to reflect poorly on the people who do those things. Do you agree with that strategy? Do you think that they need to be more aggressive, is, are they overestimating the extent to which things are different this time?

D: Well, you know, the funny thing is about that, I don't necessarily disagree with that. I mean, you know, it's fair enough to say that the Republicans' project is, you know, at least it's reached its peak some time back, let's put it that way. They definitely are in trouble. The Republican brand is being rejected, you know, nobody's really happy with Republicanism. But this doesn't mean that these attacks won't work. People kind of, you know, people make a lot of heuristic decisions in politics, maybe more than anything else. It's less cerebral than people think it is. It's, you know, based on certain, you know, instincts and, kind of, exposure over the course of your life to certain leadership models and, you know, the Republicans are really good at exploiting that stuff.

So, I don't think there's any guarantee. I thought up until very recently that there was absolutely no way the Democrats could lose this election, but because the economy doesn't seem to be, grabbing, as an issue, the way that I thought it would, at least so far — it seems to have been sort of derailed into, let's drill for, let's start off-shore drilling, and some other sort of arcane weird stuff rather than bread and butter issues. I'm a little less convinced than I was. I still think they're going to win. But, what I've been slightly disappointed with in the Obama campaign was obviously their field operation is reputed to be, you know, magnificent and really modern and they're going to have a get out and vote operation that will surpass anything that the Republicans did in the last election cycle, and that's really good news.

But on the messaging front, I'm kind of, I'm surprised they haven't been more creative. I don't think you have to go after McCain on these cultural issues, like, the story, maybe we should go after him because he's old, and why not, because they're taking on Obama, you know, because he's young, so why shouldn't they go after McCain because he's old?

I don't think they need to do that but they're, you know – McCain's corrupt. I mean, he really is. And he's not just corrupt, he's a man who is corrupt and has built his entire reputation on the idea of his moral rectitude. And, you know, I don't see why there hasn't been some strong pushback on that. His campaign's riddled with lobbyists, you know, you don't have to respond with Britney Spears and Paris Hilton, but there's more...

GG: Right

D: ...you can't hit him hard on his own real vulnerabilities. And, you know, and so it just seems to me, there's a — I think the most disappointing thing to me in the Obama campaign seems to be the messaging side of it, it's just, that they're less creative than I expected them to be.

I thought they were going to come at this from a completely new angle, use different issues as sort of, you know, the kind of sweet spots where you can cross the partisan boundary lines. I mean, things, you know obviously things like Global Warming, that's a youth issue, it's one that's definitely, seems to be crossing into the evangelical groups. I mean, there's some things that you can use out there, some issues that aren't just traditional culture wars nonsense that, I think people are tired of that. And yet I'm not seeing the campaigning breaking away from that. Again, it's early; the fall campaigns could look completely different, this is a really weird time. But it seems to me this is a good time to kind of be hitting at McCain on some of this stuff and really trying to, you know, erase this nearly unassailable view of him as being a great man of honor and integrity. I mean there's really nothing except his POW experience — that's the only thing he has.

GG: Right, forty years ago, and it's all been straight downhill from...

D: Yeah, he's been...

GG: ...that point.

D: ...this opportunistic crook ever since then, basically and, you know, yet, you know, and that has protected him and of course, you know, the media's been in love with that whole thing. And, you know, it is a compelling story, I mean, you can't deny it. But it doesn't excuse everything he's done since, I mean, you know, nobody should be able to run on that forever. But yet he does, and there are ways to attack him I think, without getting petty about it, if that's what the Obama campaign is afraid of.

GG: Right. Now, one of the things I want to ask you, and we're running out of time, but I do want to touch on this a little bit, is, you were, you know, around in the blogosphere in, very active first as a commenter for, you know, at Atrios's blog, and then your own blog, you know, leading into and part of the 2004 election, whereas I was just kind of a distant observer then, not paying all that close attention to what blogs you were doing as part of the election.

But I have paid a lot closer attention this time around for obvious reasons, and what's surprised me a little bit, during the primary, was that - you know, for me the value of blogs is when blogs fill the roles are being unfulfilled by the establishment political media institutions. The more, the greater the uniqueness is of what we do, the greater the impact is. The more we sort of replicate what the political, the already existing political and media institutions are already doing, the less of an impact we'll have.

And I felt like during the primary season, the net roots had very little impact on either the media narrative or the course of political events, because by and large the functions that they performed were just duplicating what, you know, media outlets were already performing, and the political campaigns were already performing: cheering for one candidate, hating another, you know, embracing whatever narratives help their candidate, attacking the ones that undermine their candidate, regardless of whether they were true or false.

Do you think that's true, is that different than what it was like in 2004? And what do you think the role is that bloggers can play, if anything, in terms of having an impact in the general election?

D: Well, I think - I really like your definition of what bloggers should do, sort of filling this unfilled void out there. I think that's something that most bloggers should think about; they should try and put that into practice when they're thinking about what to write about and how to write about it. I mean, at least those who are, you know, sort of seriously committed to being, you know, progressive bloggers.

2004 was a preview of this, and it was, the problem was, that the primary was really truncated. Kerry ran away with it, and, but up to that point, there had been some pretty, it was building into a intra-party spat among what was the net roots then, which was a much smaller community than it is now. and certainly much less, I don't know, institutional in nature. We were, you know, all just hobbyists essentially at that time. But it was a preview, I mean, there was, you know, this Dean, Clark, Kerry, you know, people getting nasty overnight, people turning into complete freaks overnight, you know. Yeah, the same thing.

And I think that in a weird way it set up an expectation among people who didn't have a lot of experience with politics, you know, maybe younger people or people who sort of came into politics later in life. But that's how primaries work. So you had a short little fight for a couple of months before the primary started, and then the primaries would start and it would be over. The idea of long, drawn-out primary was really, you know, completely surprising to a lot of people and angering, like, you're not allowed to do this. The truth is that primaries have often been long, and this one was quite close by historical standards, I mean, it was really was, and there was a lot of passion involved. So, I think that the blogosphere, it was a sign of political immaturity that what happened this time, and I hopefully that experience will lead people to look at it differently. I assume, I'm assuming Obama will win and we won't have to look at this for another eight years but, you know, an open primary is an unusual...

GG: That would actually be the best, come to think of it, that's one of the best reasons to rout for Obama, is so that one doesn't have to be subjected a primary war for another eight years.

D: They're always miserable, Glenn. I mean, I've hated them my whole life, you know - not easy. mean, 1980 was a nightmare. You know, the whole Gary Hart experience, you know, heart-breaking, Jesse Jackson in the 80s, you know, this stuff this not, this intra-party fighting is really one of those things that's most difficult things — you're fighting with your friends, right? I mean this isn't..

GG: Over very little, over very little of real significance.

D: It's rarely over something, you know, major and, you know, and just, it's a family fight and you know how those are — they get really, really vicious, and people know...

GG: Right.

D: ...exactly how to, where to stick the knife in to really make it hurt so, you know, it's a dare(?) unpleasant. I don't people really got that. I shouldn't say people - plenty of people did, but there those who didn't. So the blogosphere I think kind of lost its way.

And I think the main way that it lost its way was in failing to, you know, as a progressive movement and as the net roots specifically and this online, you know, group of writers and readers in, you know, trying to use some leverage that we did have in these primaries, to, you know, extract certain promises or loyalty from the candidates. I think we failed to do that and I think it was a missed opportunity, because now we're sort of flailing around, you know. What can we say? We didn't ask anything...

GG: Right, we're captive, you're captive, right.

D: But the other thing is I think we dropped the media critique, and I think that was huge mistake, because, this, I truly believe, and it's not just because, you know, one of my main beats in the blogosphere, I really think it's true, that this critique of the media and the way that they do things, this is at the heart of our problem in American politics today, and we're one of the few, you know, quasi-institutions to take that on, from the outside, and be able to exert some pressure against it. And it's not much, but it's something, and it can have an effect over time. And I think it was a big mistake for bloggers to turn a blind eye to some of the things that happened in the campaign on both candidates.

GG: Or not even to turn a blind eye, but even worse than that, to start embracing terrific media figures who were horrific before and are going to be horrific again, whoever they perceived happened to be helping their particular candidate. I mean, you would see the most lavish praise being heaped on, you know, people on CNN and ABC and MSNBC who are completely integrated in the entire rotting media structure...

D: Absolutely.

GG: ...and part of the problem in every single way, because the had to, whatever they, whatever, you know, gossip they were passing on, or crap were disseminating, and because it was helping one or the other candidate, instead of constantly pushing back against that process and undermining it the way the blogs have been doing, you know, I think fairly successfully over the past four years. They not only turned a blind eye to it, they started openly embracing it, you know, this reporter is brilliant, and thank God for this station, they're the only ones who are speaking the truth. You know, Fox News or MSNBC or whatever it was, you know, suddenly bloggers became, you know, and the Politico became not only the most cited source, but some of the time the most approved source.

D: Oh, absolutely.

GG: Yeah, or even Drudge. So the complete reversal I thought was a little alarming, and I think you're right, I think that it's a by-product of that temporary situation. One wonders whether it will really be long lasting or if bloggers can sort of revert back to what they had doing before that, that was having, you know, a least relatively speaking, the greatest impact.

D: Yeah, well, I mean, I think I already see, you know, people - you know, there's a definite sense of people coming back down to Earth a little bit. And, you know, nothing that you and I have discussed before together, you know, nothing radicalizes you more than the right wing attacking. So it, you know,...

G: Right.

D: ...people tend to get a little more clear eyed about things once they see what happens with the right wing and how that affects whoever the liberal or progressive candidate is.

So, you know, I see it, I see them coming back down to Earth. We haven't had any real post-mortems on this, and I don't think we will until after the election, and we're moving into a new phase where Democrats are going to be in power and, as you know, with our mutual projects and other projects that we're doing, that presents a whole new set of kind of assumptions we're going to be making about to affect politics. And so we're in a period of transition trying to figure out how to be something more than just oppositional.

But the media critique remains the same. I absolutely...

GG: Yeah, constant.

D: ...believe that that is not something that should ever be sacrificed on the altar of politics, because it will just never work in our favor. These are huge corporate entities, the political establishment is a small sort of provincial village of people who all know each other, and all reinforce each other's prejudices and it's never going to rebound to our favor as liberals, it's just not; and we have to, you know, that's an essentially, definitionally conservative sort of institution...

GG: System. Yeah, and cult, yeah, absolutely.

D: ...doesn't work for us, and so we our jobs should really be — whatever we're doing politically, whatever tacks we decide to take, oppose or support politicians in various issue and what have you — that particular thing should remain constant. I think it's a big mistake to let that go. And I'm hoping, you see, there's a danger here, you know, Obama's going to be president, hopefully, knock on wood, and we're going to see a different media environment, and I'm hoping that we keep a clear eye on that because, you know, that is easily manipulated in ways that we may not see coming.

I watched Bill Clinton, you know, he had a very successful convention in 1992, and coming out of a weird campaign with Ross Perot, and, you know, the economy was in the dirt, and you know, Clinton had been revealed to be a womanizer and blah, blah, blah. And he came out of that convention like a shot. I mean it was a real, very, very powerfully well done event and the press was in love with him through the end of the election. They really were. I mean, he, whatever problems they've had with him before, sure there was some little gossipy things, but in some ways they actually helped Clinton. You know, his womanizing kind of made him seem more interesting and more baby-boomer and more generational change and what have you.

And, you know, the minute he got into office the press turned in a huge way, almost on a dime, and the right wing was ready there. And it wasn't just the right wing, it was also the conservative members of the Democratic party.

GG: Absolutely. Yeah, and that's, you know, I think, you know, any movement that wants to be new, and to have a purpose, needs to conceive of itself as outside of the establishment, and oppositional to it first and foremost. And whatever benefits can be derived from the establishment almost coincidentally, you know, are secondary at most. And, I think that's one of the most important things to keep in mind.

Well, thanks so much for spending the time in what I hope is just the first of many visits — "Digby Segments" we can call them, until we have a more creative name — to come. I think it was really interesting and I appreciate it.

Friday, August 01, 2008

Interview with the ACLU's Ben Wizner

Salon Radio with Glenn Greenwald -- Interview with the ACLU's Ben Wizner

Glenn Greenwald: I'm speaking this morning with Ben Wizner, who's a lawyer with the ACLU and is calling from Guantanamo Bay, Cuba, where he is witnessing the first war crimes trial held by the United States since World War II, the military commission of Salim Hamdan, who among other things is accused of being Osama bin Laden's personal driver. Thanks so much for joining me this morning from Cuba.

Ben Wizner: It's great to be here. I'm calling actually in from a place called Camp Justice, which is a complex of a bunch of air-conditioned tents, where they put journalists and observers like me, perhaps in part to give us the idea that is actually a war court instead of an illusion, an exercise.

GG: Well, it's very inspiring, Camp Justice, I'm sure, when you arrive in the morning and you see that name there, you're as inspired as I am. What can, can you talk about just briefly how, the capacity that you're there, how you came to be there, who else is there and what you're allowed to see?

BW: Yeah. When the Pentagon decided to go ahead with military commissions several years ago, one of their mantras was that these trials would, full, fair and transparent. And so a number of human rights groups the ACLU, Human Rights Watch, Amnesty International, approached the Pentagon and said, look, if these are going to be transparent, you need to have trial observers from human rights organizations who can report to the world, especially since the government made the silly decision to conduct these trials here at Guantanamo. You know, this week, it's been more and more obvious that it would have made a lot more sense to bring one person from Guantanamo to the United States than dozens, and at some times hundreds of people from the United States to Guantanamo to watch one trial. But ever since these commissions have begun, the ACLU has been one of the organizations that has been here in an observing capacity.

GG: And you're able to be present for all parts of the proceeding?

BW: Well that was true until yesterday, actually. It's funny you ask. Yes, we've always been in the room for all parts of the proceedings. Today, yesterday for the first time, we were removed from the courtroom, everyone without a top-level security clearance was removed from the court room so that, two witnesses who I believe were affiliated with the Special Forces could testify about what they were doing in Afghanistan and so, it would be, just another embarrassment for the government this trial was determined on the basis of evidence that the press and the public didn't even get a chance to see.

GG: Was the defendant allowed to be present for that portion of the proceeding?

BW: The defendant was, but this is another one of those interesting government theories, right, that, you know, the, what they call the highest value detainees, Khalid Sheikh Mohammed and all of them, you know, we're not allowed to be in the room when those people testify, we have to be behind a glass barrier with a 20 second sound delay in case, God forbid, they reveal classified information.

Now, what is that classified information? It was disclosed to them during their interrogation - in fact it was their interrogation - because they were tortured, and because they know what techniques were used on them, they can't be allowed to speak to the public, and so the government doesn't mind revealing that kind of information to the detainees because it doesn't plan ever to release them. And that's another really amazing feature of the military commissions, which is that, Hamdan has been designated an enemy combatant, so the government's position is, whether he's acquitted or convicted, he remains an enemy combatant. He will be detained until the cessation of hostilities in the so-called war on terror, whatever that means. So they're not worried about every releasing him and letting him speak.

GG: Right. So, in other words, so, let's take a step back briefly for those who don't know, and tell the story of Hamdan's detention, when he was first detained, how long he's been detained, and what the allegations are against him.

BW: Well, Hamdan was picked up in November of 2001, I think November 24th was the date. He had just driven his wife and child to the Pakistani border and was returning to Khandahar. You know, this is a time when the Taliban and the Northern Alliance were engaged in a civil war. You know by this time the United States had strongly come in on the side of the Northern Alliance, and people were being arrested in droves, by Pakistani authorities, by tribal war lords, by the Northern Alliance. Hamdan was picked up by Northern Alliance fighters; he was lucky not to have been killed right then. He was turned over to US forces - large sums of money were being paid by US forces to get detainees who were from Arab countries. Hamdan is from Yemen. And so anyone who was from an Arab country, rather than from Afghanistan was presumed to be a terrorist and he was turned over to the US military, detained in Bagram and other facilities in Afghanistan and then transferred to Guantanamo in 2002.

Now, there's no real dispute that Hamdan was one of several drivers for Osama bin Laden. The bin Laden family originally comes from an Yemenese tribal region. He has long had a very close affinity with Yemenis, and many of his bodyguards and drivers like Hamdan were from Yemen. Hamdan contends that he was not an inner level, upper level member of al Qaeda, that he was basically a driver. This is an orphan with a fourth-grade education, who was paid cash directly from bin Laden to be his driver, was not part of the al Qaeda financing.

There's been no dispute at this trial also that Hamdan was never involved in the planning or execution of a terrorist attack; and we've had a parade of government criminal investigators come to the stand and say, no, no, no, this guy wasn't involved in any terrorist attack, not in the Cole bombing, not in the embassy bombings, certainly not in 9/11. He was a driver. And so what is the government's theory? The government's theory is that he is guilty of providing material support to a terrorist organization, and also that he was a member of a conspiracy to murder.

And, you know, Glenn, that material support is pretty elastic concept. It was used to finally convict Jose Padilla after holding him in criminal isolation for several years. The government effectively was to able to send him away for 17 years for filling out an application al Qaeda summer camp. It's not hard to get a conviction for material support.

GG: And is the allegation of material support here that the fact that he, the material support was the driving services that he gave to Osama bin Laden?

BW: Well, sure, the driving services. The government says also security, that he drove weapons around. You know, the government alleges that at the time of Hamdan's capture there was a missile in the trunk of his car, that was being ferried to a battlefield. You know, again the defense theory is that was a civil war going on. Civil war is not terrorism. If he was bringing a missile to Taliban forces, that doesn't make him a terrorist, that doesn't make him a criminal and it certainly doesn't make him a war criminal.

And actually that's an important distinction because for the government to conduct this as a military tribunal - now, they could have and still could at any time bring Hamdan to the United States, indict him in Miami like they did Jose Padilla, and prosecute him for material support, which is a domestic crime in the United States and Hamdan could be prosecuted for it. The truth is he could probably be convicted for it. But the government is making a different argument: they are saying that Hamdan is a war criminal.

GG: Right.

BW: To do that, they have to say that the United States was in a state of armed conflict with al Qaeda for the period in which Hamdan's alleged act took place. I think the United States' theory is that, the United States and al Qaeda have been at war since the early 1990's, which is a pretty remarkable statement because, most Americans had never heard of al Qaeda until 2000. But their theory is that because al Qaeda in its speeches and its web-sites and its fatwas, said that they were at war with us, that that is sufficient under the laws of war. But that's a pretty preposterous theory, that any group of people, just by saying they're at war, can themselves generate a state of armed conflict.

GG: Well let me interrupt you here for a minute and ask you about this important distinction that you're drawing. I mean, of course the distinction between, that is, trying someone as a war criminal for war crimes, which is what these military commissions are intended to do, and charging somebody as a common criminal in a federal court as Jose Padilla and even others who were originally alleged to be involved in the 9/11 attacks were tried as, and prior terrorist attacks as well. From Hamdan's perspective, since as you say, he's been declared an enemy combatant, and according to the Bush Administration, he need not be convicted of anything in order to be held as enemy combatant, in fact he could be acquitted as part of this military commission and still be held as an enemy combatant. What really is the distinction between, as a practical matter, between trying someone as a war criminal, and trying them as common defendant, and what if anything is really at stake for Hamdan in this commission?

BW: Well, that's the sort of been the triumph and the tragedy in the Hamdan case all along. What we haven't mentioned yet is that it was Hamdan, with his Navy lawyer Charlie Swift and with Georgetown law professor Neal Katyal, who challenged the first iteration of the government's military commissions, took the case all the way to the United States Supreme Court. Got a ruling that really was a historic ruling on the separation of powers, maybe the most important ruling ever on executive power, and Hamdan's reward for having been named now in our law books for generations to come, is that the government...

GG: And we should mention I mean that that ruling was one where Hamdan prevailed, and the Supreme Court said that the President lacks the authority to constitute these military commissions, that Hamdan is entitled to, like all detainees including al Qaeda detainees, are entitled to Geneva protections, the protections of the Geneva Conventions, and yet here we are, you know, two years later, and he's a part of this sham trial, so what is, what can he even hope to gain?

BW: That's exactly right Glenn. because, as so many other time you've been cataloguing over recent years, defeat snatched from the jaws of victory, right? What was the result? Hamdan was overruled by the United States Congress and in the final days of the, 2006, the Republican Congress, the Military Commissions Act was passed. It reconstituted the military commissions, with virtually the same rules as before.

I was down here a couple of months ago, for a pre-trial hearing, in the Hamdan case, and Hamdan was explaining to the judge that he was considering boycotting this proceeding, that there was nothing in it for him, and the judge said, but Mr. Hamdan, you took on the President of the United States, and you won, and Hamdan said very pointedly, and what did it get me? You know, I've been with Mr. Swift for four years, I know the law better than he does now I think, you know, surely I won in the Supreme Court, that I'm in a solitary confinement cell and they're prosecuting me under a system that doesn't seem like a legal one. Did Congress make this new law just for me? Yes, that reflects his understanding.

And so, this is for all of the pomp and all of we how say this is historic moments for the United States, this is a Potemkin legal proceeding, basically put together to project an illusion of justice. The outcome doesn't make any difference. You would think, though, that if the government were going to through all the trouble of conducting such a sham trial, they would not chain themselves by starting with Osama bin Laden's driver. And what again we've heard from government witness after government witness, is not only that Hamdan was a marginal figure, but that he was actually a cooperating witness, that through dozens of interviews with at least 40 criminal investigators, he repeatedly provided information that was useful to the government. He identified al Qaeda figures from photo arrays. He said that he would even be willing to testify against others, you know, this is the kind of guy if he had a lawyer, and if he were in a real court system, would be a witness and not a defendant. It would be as if the Nuremberg Trials opened with the prosecution of Hitler's driver, someone who by the way was never charged, and who died of old age in his own bed.

GG: Right. Now, it's incredible for the mockery it makes of justice and it's equally incredible if not more so for the sheer ineptitude of the whole strategy. Let me ask you a lot of the commissions have focused on, not the question of what Hamdan did, rather on the question of what the United States government did and specifically the interrogators of Hamdan did, in terms of the treatment that the subjected him and there was a ruling early on, that certain evidence would be excluded because it was obtained in a coercive environment. Talk about what those issues have been, and I guess there was some pretty extraordinary events on Wednesday regarding the US government's sort of indifference to whether or not its best evidence would even be useable in this commission because it seems so inconsequential. So can you talk about some of those issues his treatment and the interrogation techniques that have been used on him?

BW: Well, what's interesting is that, there really are two Guantanamo's. There is the Guantanamo that's been presented by the government in this trial, and that's the Guantanamo where professional FBI interrogators, some of them who are fluent in Arabic like the famous Ali_Kisan bring fig newtons to the detainees, sit knee to knee on the floor, sometimes even lie elbow to elbow, talk about the family, arrange for phone calls home. have non-coercive professional polite interrogations that are amiable. Those are the people who of course are called in to testify against Hamdan at trial.

But there is another Guantanamo that we all know about, and that's the Guantanamo of Rumsfeld's memos, of November and December of 2002 and March 2003. A Guantanamo of stress positions, of extreme temperatures, a Guantanamo where someone like Hamed_Katani could be lead around on a dog lease and forced to defecate on himself. This was a laboratory for very brutal interrogation techniques that then migrated to other places. Really awful things were going on here.

But you would not know that in this trial. Because of what must be a remarkable broad protective order, this entire trial has been conducted as if the CIA doesn't exist. The name CIA may not be uttered in the courtroom. The closest we get is hearing that there might be other government agencies around, and there was an incredible moment in the court yesterday, where one of Hamdan's lawyers wanted to ask a question of an FBI witness that must have been about the CIA. The government objected on classification grounds. The defense lawyer held up the 9/11 Commission Report and said all I want to do is read one sentence from the 9/11 Commission Report. He was not permitted to read a sentence from the 9/11 Commission Report because in this trial that's considered classified even though it was on the New York Times best-seller list.

GG: Right. It was part of the public parts of the 9/11 Commission Report was public, he wanted to read into the record a public statement.

BW: He wanted...

GG: That was barred on...

BW: ...a public statement from the 9/11 Report and had a witness respond to what the 9/11 Report said. He was not permitted to do that. And so, there's this strange sense in that I am here, and I am sitting in the courtroom, you know - I'm in the one place where issues that the entire world has been discussing for four or five or six or seven years cannot be discussed. They can be discussed everywhere else, but not here, because of purported harm to national security, and look we've seen a lot of that, I mean, I have represented lots of people whose cases have been thrown out on state secrecy grounds for exactly the same reason, that it was determined that you could not litigate in court what could be written on the front pages of newspapers.

In this case, the government not only wants to ignore the existence of these interrogations, but waited until the eve of trial, and actually into the trial itself, to turn over some records that have confirmed what Hamdan has been alleging all along, which is that he was repeatedly woken in the dead of night, that one time he was sexually humiliated by a female interrogator. These allegations were ridiculed by the government's entire proceedings, documents that they disclosed to the defense during the trial confirmed that Hamdan was right. I wish I could tell you what those documents say, I can't, I can't see them, they're classified, they get handed solemnly around the court room and red folders marked 'top secret'. The defense can only very obliquely ask questions about them and we actually learn more about this in the post trial press conferences than we do in the courtroom itself.

Now the judge, Keith Allred, who's a Navy captain, is, seems to be a bright guy, actually is probably the best judge down here in terms of fairness to detainees. But, as an observer, you always feel like Charlie Brown who's tried to kick the football again. We always think that Allred's going to do the right thing and at the last moment he doesn't. Allred wanted to sanction....

GG: So in other words, he makes observations about government misconduct or about unfair aspects of the trial, he's seems concerned, even angry about what the prosecutors are doing, but at the last minute he always rules in such a way that ensure that the government essentially gets what they want, and the detainee doesn't?

BW: And yet for some reason we continue to think that the next time he's going to rule with the detainees, and that's why I described, I compared it to Charlie Brown and the football.

But in this case, Allred was genuinely angry that the government had waited until into the trial. Now remember, Hamdan has been government custody since 2001. The idea that these materials couldn't have been collected earlier and turned over to the defense just silly, but it reflects the deliberate compartmentalized system where the people who were going to prosecute the cases were in this bubble that would allow prosecution of the alleged crimes committed by the detainees without any discussion of the crimes committed against them by other government agents.

Allred said, look, I have to sanction you for your misconduct in turning over this material this late, and I'm going to say that with respect to one critical interrogation, that you want to introduce, that there's a presumption that it's coercive. I'm going to not allow it unless you can prove, by clear and convincing evidence, that it was not coercive, and so that was what happened the other day. The government brought forward absolutely no evidence that it was not coercive, they didn't put a single witness on the stand who knew anything about the circumstances that Hamdan, night time interrogations. But at the end of the day, Allred allowed the interrogations to be admitted, released what I can only describe as a hilarious ruling because it's five pages long, and I think one paragraph of it is not blacked out. I said to a reporter yesterday, this is Guantanamo in black and white, mostly black.

GG: Right. So in other words, so, the judge presiding over the trial told the government that unless you convince me with convincing evidence that these interrogations were non-coercive, which was the penalty for failing to produce these documents about his interrogations, I'm going to bar any evidence of what you said as part of these interrogations. The government ignored that, didn't present any evidence to try and even prove that it was non-coercive and he eventually allowed it anyway, the evidence from that interrogation. And then released a blacked-out order as to why that ruling was his ruling?

BW: That is exactly what happened here. And again, nothing really should surprise, and, but I really do think that there was a collective gasp among observers, and you saw that this particular witness was going to be allowed to testify with no penalty against the government. You know, there's another issue that is hanging over Hamdan's interrogation that is not about physical coercion. Now, Hamdan, you know, certainly has had a rough time being in US custody for all these years, but he's not someone who, like other detainees, was brought to black sites and exposed to them, to the worst enhanced interrogation techniques. He's not someone who was water-boarded, he's not somebody who was maintained in the worst stress positions.

But, you know, what's remarkable about this, is that, you know, the government has long made the claim, that we need these new rules, we need a military commission, because how can we expect our soldiers and our agents on the ground, in the battlefield, in caves, to be administering Miranda warnings? That may not be an unreasonable argument, to say that soldier who's on a battlefield doesn't have to give a Miranda warning, and in fact the law has never required that. But let's be clear about what's going on here. Hamdan was not interrogated on a battlefield. He was interrogated dozens of times in an air-conditioned trailer, thousands of miles away from, many, many months and even years removed from any battlefield, and so the rationale that the government has given for not providing warnings is utterly, utterly absent here. And so each government witness that has taken the stand has said that the reason why he didn't give Miranda warnings, is that it was government policy, and that the purpose of the interrogation was intelligence, not criminal justice.

Well, every single one of those interviews is now used, literally, to convict Hamdan with his own words, and Hamdan, by cooperating, sewed his own newt[sic]. Other detainees who refused to speak, are now in their home countries, because they didn't give the government any evidence for putting on a show trial. Hamdan, by sitting down and naively providing all of this information that he thought would be very helpful to the government and if fact was helpful to the government, was in fact writing the prosecution's case against him. And I think that's important because, you know, issues like Miranda and self-incrimination may seem marginal, but they really do go to the heart of what a fair trial system is. Someone has the right to know he is a criminal suspect when agents now, we heard testimony yesterday that the, one of the more experienced government agents who had not interrogated Hamdan, a year after all the other interrogations were over, flew down to Guantanamo with a military commissions prosecutor, to clean up Hamdan's interrogations for presentation at trial. At trial - this was not about getting additional intelligence, this was about, this very experienced witness described himself as an excellent trial witness, working with a prosecutor, in a setting with no warning to Hamdan, and no counsel to Hamdan, to go over all of the previous interrogations and plug any gaps so that the case against Hamdan would be airtight. And that witness took the stand yesterday and gave damaging testimony against Hamdan.

GG: Right, it's amazing that, you know, the idea, the rationale of terrorism is to bring publicity to a cause, in this the cause being that the United States is some sort of corrupt and rotten system that ought to be brought down, and yet, you know, the actions that have been taken that have advanced that cause far more than the others is the actions of our own government, in putting on sham trials like the one that we have. You know, it literally couldn't matter less what the outcome is to the detainee. Let me ask you this last question, what is likely to happen from here, how many more days are there to go, and has the defense began to present its case yet, and what is that case likely to entail?

BW: Well, I think some of the more grotesque indignities may still be to come. The defense just began its case yesterday, and I think that their case can be summed up as follows: there was no war between this rag-tag group called al Qaeda, and the United States of American, at least until September 11th 2001, until the authorization for use of military force. And so that anything that Hamdan may have done before that time, perhaps could prosecuted criminally in a domestic court, but certainly is not within the jurisdiction of a war court. And moreover, that Hamdan was never involved in the planning or execution of any terrorist attack, did not conspire, there was no meeting of the mind between him and some other member of the conspiracy to carry out these attacks, and so therefore he isn't guilty.

Hamdan will be convicted. These military officers who were brought down here were not brought down here to acquit him, they were brought down here to convict him. In the penalty phase of this trial, the government is planning to bring in 9/11 family members to give inflammatory victim impact statements. Now, that would be one thing if was the trial of Khalid Sheik Mohammed...

GG: Right.

BW: But this is the trial of bin Laden's...

GG: A low-level driver that nobody claims had any role whatsoever in the 9/11 attacks.

BW: That's exactly right, and the jury has already seen footage of the planes slamming into buildings, people shrieking, of charred bodies, of weird Arabs firing guns, and the idea that this trial, as with many measures is to take these low level actors, and put bin Laden's image and name into the trial as much as possible. So we'll see that next week.

It's hard to predict anything, Glenn. I would not be surprised if the witness portion of the case includes today, on Friday, but of course, there will be closing argument, there will be deliberations, and then there will be a penalty phase of the trial, so I may be in the Camp Justice for one more week.

GG: Right, well, at least you're at Camp Justice, the Camp Justice part of that, and just so listeners know, you are periodically writing about what you're observing at the ACLU Blog of Rights, which is at blog.aclu.org.

BW: That's right, and it's cross-listed at the ACLU Diary on DailyKos, which is aclu.dailykos.com.

GG: Excellent. And I'll definitely keep following that, and we'd love to have you back on to talk about next week's outrages as this sham trial proceeds. I really appreciate your taking the time this morning to talk to me.